Thinking About the Future of Law, Technology, and AI, As Well As Legal Issues Superheroes Face

John Reed [00:00:00] Most of the attorneys we feature on the podcast have differentiated themselves through their accomplishments in the practice of law. They think creatively about how to achieve results and make a difference within the present paradigm of litigation, transactions, and legislative and regulatory matters.

But my guest today has distinguished himself by envisioning how the paradigm will shift and what the practice of law will look like tomorrow. Obviously, technology is a big driver there, and understanding the mechanics and application of various innovations is his superpower. And if right about now you're thinking the discussion may be a bit heady, I urge you to stick around. You don't have to be an attorney to understand the implications. 

Speaking of superpowers, my guest wouldn't be a sticky lawyer if there wasn't at least one other remarkable aspect of his personal or professional life. I'll tease that part of the conversation this way. Have you ever wondered how the law applies to Superman, Wonder Woman, Spider-Man, the X-Men, or the Avengers?

The comics give them a pass when it comes to legal issues. But what if they had to answer to the law or needed to invoke its protections? Get ready for an in-depth analysis. Again, no law degree from Gotham University Law School required. 

James Daily is a data scientist, researcher, and lecturer at Washington University School of Law and its Center for Empirical Research. That's a mouthful, and we'll talk about what that involves as well as his time as a research associate at the Hoover Institution at Stanford University and his work as an attorney and litigation consultant on intellectual property matters. James is also the creator of the Law and the Multiverse blog, and the author of Many Posts and a book, the Law of Superheroes.

Hi James. Welcome to the podcast. 

James Daily [00:01:49] Thank you. It's great to be here. 

John Reed [00:01:50] You are a legal practitioner and advisor, but what strikes me most about you is that you are a legal thinker. You're a futurist. You are thinking about the law, the future of law, and the impact of technology on the law. So, I'd like to start with your education.

What was your path from high school to the practice? 

James Daily [00:02:12] Yeah, I came into undergrad studying computer science and mathematics at Hendricks College, a small liberal arts college in Arkansas where I grew up. And I knew that I wanted to do something with law and computer science. I wasn't sure what that was going to look like, not knowing much about the law. But I thought maybe software licensing. At the time, open-source licenses were getting a lot of attention in terms of their validity and how they might interact with proprietary software. Another major issue was software patents at the time, which there was a lot of concern about what that might mean for the industry and for open-source software, in particular.

I knew I wanted to do something with those two. And so, I applied to various schools for both programs, both computer science and law. And I was admitted to both at a couple of schools, and I chose Washington University in St. Louis to study both computer science and law, where I earned my master's degree in computer science and my law degree.

John Reed [00:03:04] You get your degree. Throw in a good, you know, USPTO, U.S. Patent Trademark Office admission for good measure. What was the path? You know, obviously, I mentioned you went to Stanford. No thoughts about private practice? How did that opportunity present itself? 

James Daily [00:03:18] Well, I certainly considered private practice, but when I took the actual substantive patent law course with Scott Keefe, a professor at Washington University at the time, I realized that one—my greatest interest was in patent law rather than copyright issues.

But as graduation approached, Professor Keefe offered me a position with the Stanford University Hoover Institution's project on commercializing innovation. A bit of a mouthful, but that was a sort of an IP, antitrust, and bankruptcy think tank that he headed up as the principal investigator.

And the idea of continuing to think deeply about these issues and do research and writing about them was, was very appealing, as was the prospect of not having to, you know, manage 2100 billable hours a year or something like that. 

John Reed [00:04:01] That is definitely appealing and the Hoover Institution, Stanford, I mean the motto, if you will, "seeking to improve the human condition by advancing ideas that promote economic opportunity and prosperity while securing and safeguarding peace for America and all mankind." That is no short order there. What was your focus or what did you become expert in when you were at Stanford? 

James Daily [00:04:24] So we definitely took a small slice of that large mission statement. And the thesis, I guess, of the project on commercializing innovation was sort of twofold.

One, that the patent and copyright clause of the constitution talks about giving authors and inventors an exclusive right to their inventions. So, we think of this as a property right. Thinking that to its conclusion, what should that look like in order to sort of effectively carry that out? And viewing one way to do that as really leaning on the power of markets to efficiently determine whether or not a given product or service or idea is useful, is beneficial, is valuable.

So, the thinking is that if we can structure the patent system so that ideas are easily commercialized, easily brought to market, where they can be efficiently valued, then they would become available at a, hopefully market-determined, efficient price for people. And to do that you want patent rights that are clear, that are easily determined. And that disputes over patent infringement or patent ownership and the like, can be again, quickly managed. 

One of the main thrusts of the project, and the idea is that that is ultimately socially beneficial because it means that the best and most valuable ideas are quickly brought to market and more easily made available to people in society.

John Reed [00:05:49] With Stanford though, I believe that's when you started doing litigation consulting on IP matters too. Can you talk a little bit about that? 

James Daily [00:05:56] As you might expect from that summary, we were definitely not a group that viewed itself as needing to be sort of a rarefied ivory tower academia approach, but instead, very much interested in the practicalities and working with companies, patent owners, and intellectual property owners.

I had the privilege of working with Scott on some intellectual property matters, and patent matters as a litigation consultant. Hired by the firms who were representing the parties, who felt like they needed some additional expertise to think outside the box a little bit and come up with some, maybe some novel strategies, legal strategies in those cases. 

John Reed [00:06:32] And then from Stanford back to your alma mater of Wash U, where as we mentioned before, you're a researcher, you're a lecturer, data scientist with the Center for Empirical Research and the Law, which is a great name. So, tell us about the things that you're working on at Wash U. 

James Daily [00:06:49] On the research side, I've been able to do some research and writing of my own as well as co-authorship work with others. And I created and taught a course on technology and legal practice.

So, this is the technology of the law, not the law of technology. Focusing on technologies that are used by lawyers or that will soon likely be used by lawyers. It covered things like, you know, matter management software, electronic discovery, but also the very, at the time, pretty new idea of AI-based tools for things like contract review and mergers and acquisitions, due diligence. And then as part of my work with other researchers, I've been able to apply some of that computer science, data science background in helping to develop new data sets and analysis tools for them as part of that research.

John Reed [00:07:39] Tell me about some of the requirements that you placed on your students for that class. 

James Daily [00:07:44] Yeah. I did design the course to be very practical. I wanted them to have firsthand experience with a lot of this software as well as some substantive legal concepts like with the law of electronic discovery, but also just really getting their hands on these things. And so, for example, I required my students to bill their time in the class through Clio as though they were doing work on behalf of a client. I didn't grade them on how many hours they spent on the class, but, 

John Reed [00:08:07] Well, that wasn't very practical then. 

James Daily [00:08:10] But if they attended a course, if they were in class for a day, they needed to bill that.

If they did some studying time, if they spent time on an assignment, they needed to bill that with a contemporaneous little narrative of the work they did. This also provided a way for them to ask questions anonymously about assignments, because from my point of view, they were not their name in the system, rather they were student 1, 2, 3, 4.

So yeah, I really tried to get them a sense of what it's like to actually use the software, what it can and can't do. The thinking is that you know, some of them will go on to use this kind of software in their daily practice. 

Certainly, they're going to probably be billing time wherever they are. But they may or may not be the attorney who's using, you know, e-discovery software directly, but they may be, for example, looking at the ultimate results of that coding process. Or they may be deciding what software to buy at the firm. Or just to consider switching to or upgrading to, or what have you. And I wanted them to have kind of that complete experience. 

John Reed [00:09:08] I think what you just said is so important. It's, you actually taught the business of law to these students. Not necessarily padding their hours through Clio, but they may be in a position where they have to purchase the software. They have to evaluate its capabilities. And I would think that, well, I'd like to think that made them also more valuable candidates for job opportunities. So hopefully it was a very popular class. 

James Daily [00:09:30] The students seem to like it. Yeah. We've got some pretty good feedback on it. It got booked up pretty quickly, so.

John Reed [00:09:35] Let's switch gears and do talk about AI. There's "the sky is falling" mentality right now that AI is coming for my job as a lawyer. You know, let me ask you the easy-to-answer question that is, where do you see the law headed vis-a-vis AI and technology? Are there any jobs at risk, where are the efficiencies, and where are the things where AI is not going to be a threat for a longer period of time, if at all? 

James Daily [00:10:02] I think it's a little hard to say just yet. And the reason is because when we look at these very impressive seeming, especially generative AI technologies, we see a lot of demos and descriptions of all the amazing things they can do, but we don't see a very transparent description of what they can't do and where they fail, or how often they get the right answer. Often, they don't. And so, it's a little harder to judge just yet how much of a difference they're going to make. I wish the companies were more transparent. It's a little outside the norms of this kind of area of research, of machine learning. 

AI, generally speaking, you come out with a new model or algorithm or something, you're pretty clear about what it can and can't do, usually have some formal benchmarks. And these companies aren't doing that, and that's a little worrisome. I've even asked some of them about it and they say, “Yeah, maybe. We might do something like that eventually.” So, they're a little cagey. And I can say that from my personal experience, they're not perfect.

You can ask these kinds of models perfectly reasonable questions that are phrased just the way you might ask a human associate. And they will get it wrong and in ways that make sense if you know how the models work behind the scenes, but that most attorneys may not necessarily understand why it would be wrong. And thus, might be a little more inclined to assume the answer was correct, to take it to face value, and to not realize that that's the kind of question they don't do so well at. So, I think that they will probably not actually make huge inroads into legal research yet because of the need to double-check the answer. 

One thing that all these companies are going to do and they're advertising is, this is an amazing new tool, it's groundbreaking, game-changing. But also, please don't believe what it says, and double-check the answer. Yeah. So, I think that for, you know, like drafting a legal research memo or something like that, it'll be a moderate improvement is my guess, in efficiency and accuracy. 

Where I think we'll see the biggest gains are drafting and summarization. Where in the case of summarization, it can mean the difference between, I simply do not have time to read this entire document before a deadline. You know, this was presented to me very shortly before a filing deadline or court tomorrow or whatever. There is just simply is not time to read this, but I can at least get a decent summary and that's better than nothing.

That's better than skimming. That's better than ignoring it. It is a distinct improvement. Even if the summary is not maybe quite as perfect as say a, you know, experienced human editor who had hours to read it and craft a summary. 

For drafting, if you ask an associate to draft a cease-and-desist letter or a contract or something like that, you're going to review it anyway, but you're going to go over it and edit it. And so, in that case, the workflow is very similar. Whereas if you ask a human associate to research something, generally speaking, you'll not go through and systematically double-check all their work. You'll generally assume that they largely got it right. 

So, for drafting, I think that because the workflow ends up being about the same, I think it will be an area of efficiency because while there is an either direct or marginal cost of using a tool, it's cheaper and faster than a human to do that. So, I think that will be an area where there's improvement.

Who's it, who's it coming for? I think it's going to be, well, it's going to be much like e-discovery tools where it kind of eats away at the bottom, where there's fewer contract attorneys going over thousands of emails all day. Clicking yes, no. So similarly, we'll see maybe fewer and fewer associates and we'll see that continued erosion of the pyramid structure of law firms where this becomes more, a little more vertical and fewer, more concentrated equity partners, et cetera. 

John Reed [00:13:39] A lawyer's favorite answer, and they teach us this repeatedly in law school, is “it depends.” And so, there's this idea of nuance of lawyering. From what you've described, what many would call commodity work, seems to be in the crosshairs of technology. But there's still going to be that room for nuance and creativity or creative distinction or whatever you want to call it, that's still within the human realm. Is that kind of a fair characterization? 

James Daily [00:14:07] Yeah, absolutely. I've had the privilege of giving some talks on AI and the Law at the Eastern District of Missouri's bench and bar seminars recently. And one of the focal points of that talk has been thinking about like, well, where's an area where new technology or AI has definitely succeeded?

And that's e-discovery, technology-assisted review, where it is ultimately an AI model. Not as complicated as the generative AI models that we talk about today, but still it's an AI model being taught to determine for a given case, is this relevant or not, responsive or not? Privileged, et cetera. And how we know those succeeded so well because it was a very straightforward question. Yes. No. And it's one where there was transparent benchmarks that were developed to determine if humans or computers were better at this. And it's an area where it's kind of an unavoidable task. You’ve got to review them, those documents, right? You can't get away from it. And, and especially in most, an increasing percentage of litigation these days involves a lot of eDiscovery.

And it's not so strategically important. Whether or not a given document is relevant or not, privileged or not, usually is not the make-or-break point for a case. Now, it can be for sure, but for most documents, it's not. So, there's not a lot to gain over fighting over every single document, and there's not a lot to gain by investing an hour on every single document, just pouring over it, right? You want it to be as fast as possible. 

And so, with AI, is it going to be more like e-discovery or is it going to be more like, I guess maybe we think of like traditional wiring tasks. And I think that the more complex reasoning, the more it involves nuance, the more it involves taking into account the particulars of the judge, the particulars of the client, the particulars of the opposing party, the particulars of the party on the other side of the negotiating table, and something in a transactional case, then it's something that generative tools will, will fall down a bit on. 

And if you ask a human attorney a legal research question and you ask these AI tools a legal research question, you might get the same top line answer, the same basic answer, but the human is going to be able to take into account, especially one with experience, is going to be able to take into account, yes, technically we have a good chance of, of winning on, you know, on this argument. You know, it certainly looks like our facts fit the bill here. But I know that the client is much more interested in resolving this case quickly, and they would actually rather just take our 75% chance of winning this argument at trial to the negotiating table and settle quickly.

Or no, no, no. I don't care that the top-line answer is 10%. This client really wants to see it through, so we're going to do that. Or the human attorney can take into account. Yes, normally. But I know that this particular judge doesn't like that argument. Or this particular judge seems to be maybe a little biased against large corporations and we represent a large corporation here. And so maybe we don't want to emphasize that argument. We want to downplay in favor of this other argument that where the fact that it's a corporation doesn't matter as much, that kind of thing.

So, all these sort of fine details are important. I think when we think about creativity in particular, we have to think about where can the creativity reside? You can ask these models to do remarkable things like write a cease-and-desist letter in iambic pentameter, and it'll turn out probably a mediocre poem, but at least it'll be a poem and probably a better one than I could write.

And that maybe seems pretty impressive and creative. But on the other hand, the model didn't come up with the idea to do it that way. The human did. And so, we have to remember that these systems are, at least for now, not really capable of self-direction. And that's going to remain very, very important.

John Reed [00:17:52] I had a conversation with somebody over the weekend about the novelty of AI currently is asking it to deliver something: answers, opinions, whatever it may be. What was pointed out to me, which I thought was really interesting, is using AI as an assistant. So, for example, instead of, you know, how do I litigate this case, or break down this answer for me or, or whatever it be, what question should I ask at this deposition involving this case?

So as a practice assistant as opposed to a replacement, what are your thoughts on that? Is that something you get into either with your students or in your lecturing? 

James Daily [00:18:34] Yeah. So, I think that when we think about assistance, I think that's definitely something that these tools offer. And maybe at this point, one of the ways in which they can be best used is not as a replacement, but as an augmentation, as an assistant, as a, as leverage, as a way to make you, you know, sort of a little more accurate, a little faster, more efficient. And that's good, right?

It's good for economic reasons. It's good if, potentially, socially beneficial in terms of access to justice. It can mean that, you know, if you can get more work done for more clients, then you can represent more people, then that's good. There's certainly a lot of unmet legal need in the world. 

I think that to a certain extent, the advertising and the description of these products is a little backwards. In the legal research case, for example, they describe them as being a jumping off point. It's like a legal encyclopedia. It's a way to get started, but you have to double check it. And I think that's backwards.

I think that instead, it's better to think of it as a way to close the loop, a way to double check the end, that you should actually start with a traditional research approach. And thus, not have the bias of what the machine says in your mind. And then at the end, then ask the machine and see if it comes up with anything new that you maybe haven't considered.

If you ask the machine first, you're already biased towards that answer, and you're going to either look for things to confirm it or if you don't like the answer, then you'll be busy looking for things to disprove it or whatever. And I think it's better to kind of go into it with a more open mind and approach it in a more traditional way.

Same thing with deposition questions. You might sketch out your deposition strategy, then ask the machine and be like, ah, that would actually be a good question. And we'll make sure to work that in there rather than starting off with whatever the machine might suggest, which again, can kind of tend to put you on rails and maybe cause you to miss something.

John Reed [00:20:14] You mentioned access to justice, which I guess for the idealist, if you can give the lay person, particularly somebody that doesn't have means, to use AI that would be a game changer.

And yet, as you alluded to before, these companies are not starting with legal services or legal clinics or that level when they are thinking about commercializing their products. Instead, they're going elsewhere for testing. Can you speak to that? 

James Daily [00:20:47] Yeah. This is something else that kind of troubles me about how these products have been rolled out.

That, so for example, Harvey, its initial law firm partner was Allen & Overy, one of the largest firms in the world. Lexus has partnered with some firms in the AM Law 50. Again, very, very large firms to test these products and develop them further. 

Now, on the one hand, that makes perfect business sense, right? You want to dangle the carrots in front of some of your biggest customers. That's a lot of money to be made there, and they have the resources and the extra people, to, you know, spend time on that, to say, “Okay, hey, work with this tool for a while, even if it might slow you down. We want to get some early experience with this.” If you're a solo practitioner, that's very much a zero-sum game for you. So, I kind of understand it. 

On the other hand, if they're going to talk up access to justice and the potential for that and just, I don't know, general ideals of the profession, I would've liked to have seen either just go straight to market for everybody, or at least a broader base of institutions that got access to it, rather than giving some of the largest, richest firms several months’ head start on using what is supposed to be a pretty big deal, in terms of what it'll mean for efficiency and accuracy and that kind of thing. 

John Reed [00:22:01] Sure. As fascinating as this has been, I want to switch gears and talk about the multiverse.

How far back do you and the superhero universe go? Comic books, television, movies. Where was your introduction to the world of superheroes? 

James Daily [00:22:17] My earliest memories in this regard are watching reruns of the Adam West Batman TV series when I was about five or six. 

John Reed [00:22:24] Are you team DC? Team Marvel? Are you uncommitted to a particular team? 

James Daily [00:22:30] I would say I'm largely uncommitted. Growing up, my first exposure was Batman. And when, a few years later, as I got old enough to be trusted to bike to the local comic bookstore, some of the big comic book storylines of the day were Batman's Knightfall series. There was a big introduction of Bain as a villain, was a lot of the inspiration for some of the Christopher Nolan Batman movies. Then we have The Death of Superman, which was a huge comic book event. This was the doomsday villain and so again, that's been something that's been the subject of some movies. But at the same time, this was also the era of the X-Men Cartoon show, and so I definitely picked up some Marvel comics as well. I think I've been a pretty equal-opportunity comic book reader since then.

John Reed [00:23:13] You started The Law and the Multiverse blog with Ryan Davidson and the Law of Superheroes book with him as well. You and your insights have been featured in the New York Times, Wired, NPR, the ABA journal, and you've made the rounds at comic book conventions as well. So, you've got street cred, that's for sure.

For the uninitiated, how do you describe what the blog and the book are all about? 

James Daily [00:23:37] The idea is to explain legal concepts using comic books and their, you know, associated movies and so forth as the jumping off point and also popular media beyond that. When we think about legal concepts, they often seem a little abstract at times.

And when we think about the cases that they're often explained through, the usual method of looking at case law, this is even, it is still abstract. Either it's, you know, just completely artificial, something like Black Acre or you know, plaintiff/defendant. Or even if it's a real case involving real people over real property, for example. These are people that we don't know. 

Whereas with comic books, I hesitate to say everybody knows, but many people I would say are familiar with Superman, with The Joker, with Lex Luthor, with the X-Men, and so forth. And so, they know who these people are. They know their motivations; they know their concerns.

And this provides a sort of a good jumping off point. It's a way for people to, it grabs their attention. It makes them think. And yes, these are extreme, larger than life characters. That's great because it really sharpens the point, and it's extreme in a useful way for teaching purposes. And it can create situations that are maybe a little artificial because it's being written, right?

It's fiction. But that's great, right? It's these fairly simple, iconic characters and plots that are easy to get into and to analyze. That makes it a great way to look at the law. 

John Reed [00:25:07] I have to point out though, James, you make it sound like an academic scholarly exercise. It's just fun. It's entertaining to call out what people have probably thought about at some point while watching the movie or the show or reading the comic book. I hope you get entertainment out of doing it though. 

James Daily [00:25:26] Oh, absolutely. Like say the, one of the things that comic book fans and lawyers both really enjoy doing, it's overanalyzing a situation and taking it to its finest detail and really thinking deeply about it. And putting those two things together ends up being pretty natural, working quite well.

Sure. And it is a lot of fun to think about questions like, well, you know, if Superman crushes coal into a diamond, does he have to pay income tax on that? If he gives it to Lois Lane, does she have pay income tax on that? 

And the great thing about comics is because there's been something like 130,000 individual issues of comics published over the past hundred years or so, almost every single imaginable area of the law has been touched on. 

And so, yeah, sure it's the big obvious, you know, criminal law-towards kind of stuff. But beyond that, the constitutional law issues, patent law issues, you know, you name it, likeness rights. I get plenty of IP law opportunities. And we even have numerous superheroes who are themselves attorneys, so we can get into attorney ethics. And so, everything you can imagine. 

John Reed [00:26:28] I do like the fact that you also go into civil rights with some of your topics. You know, Superhero Registration Act fair treatment. And you're right, it would be so easy to stay within the criminal law, constitutional realm, maybe property. But it is such a wide breadth of legal issues. 

I have to ask though, in superhero parlance, what is the origin story of the blog and later the book?

James Daily [00:26:54] Well, that all started with a dinner conversation. My wife, Jennifer, and two friends of ours, Maya and Paul, we were having dinner at a Persian restaurant. And I don't remember exactly how the topic came up, but we were talking about Superman and his own planet of Krypton, and the idea that if everyone on Krypton had x-ray vision—which I paused here to say for the comic book fans in the audience, I'm aware fully that normally Kryptonians do not have superpowers. They gain that through exposure to a yellow sun, such as earth's. Krypton normally orbits a red sun. But there are cases in comic books where Kryptonian societies have been made up of people with superpowers because of being near a yellow sun. 

Supposing that were the case, their idea of the reasonable expectation of privacy, their version of the Fourth Amendment would have to be very different. It would raise those issues. If everyone has x-ray vision, then the idea of what's private and what's not is quite different. And friend Paul suggested that I should sort a blog about that kind of thing and that he would read it and that'd be at least one person.

And I thought, well, sure, whatever. I'll give it a try. And so, I wrote up a few posts and then put a link to it on a community web blog that I'm a member of called MetaFilter. And that's where it got its first attention. And also, where Ryan Davidson first saw it. He was also a MetaFilter member and said that, you know, he was an attorney, and if I'd want some help writing some posts he would be happy to be a co-author. So that's how it got started. 

John Reed [00:28:21] Well, first up, thanks for making the distinction about Krypton because I don't want any letters coming in from Krypton listeners. 

James Daily [00:28:29] Oh, and you would. You would get them. 

John Reed [00:28:30] Let me read some of the questions you raise. Could Superman sue if someone exposed his identity as Clark Kent? Is a life sentence for an immortal like Apocalypse cruel and unusual punishment? Is x-ray vision a violation of search and seizure laws? Is The Joker legally insane? And who foots the bill when a hero destroys a skyscraper or two while defending Metropolis? 

I geeked out. I'm not going to lie. I geeked out as both a lawyer and a superhero fan. When I came across your work, I was totally captivated. 

And I want to go back to something I alluded to before, and that is the topics that you choose are interesting. The substantive analysis that you apply is fascinating. You reach an actual conclusion. It's practical and it makes sense, and we care about it. 

What is your process from ideation to conclusion? How does that work? 

James Daily [00:29:24] It can happen several ways. Sometimes it's because I'll be reading a comic book or watching a movie or something and I'll think, “Oh, hey, wait a minute, let's think about this for a second.” And I think that's probably the germ of this for most people is this moment of like, well, hold on a second.

And sometimes it's because people will have that same thought and write in with questions. That happens all the time. I get lots and lots and lots of questions from readers and I try to answer them as much as possible, either by email or in posts. And sometimes it's because I think about an area of the law and I think, “Well, I wonder if there's something out there. Genetic non-discrimination acts—maybe I can find something in there.” It can go the other direction. It can be an area of the law that I think maybe there might be something. And again, in that 130,000 comic books plus all the TV shows and movies and, and everything else, there usually is something you can find.

I look for, usually if I can, instances where it's a well-known character, because again, it's a good jumping off point. Or if it's not a well-known character, it's at least a very interesting one, kind of a funny, sometimes I'll call like maybe a C-list character or what, or a one-off villain or something.

And those can be good if they really present the issue in a very clear way and because of the nature of their powers or the particular plot or whatever. Because we want this to be pretty compact, you know, 500 to a thousand words or so. We don't want to write this whole big law review article. 

And ideally, we want something that, where it takes place in something pretty much like Earth, minus the whole superheroes thing. Where ideally it happens to the United States in approximately the present day in an identifiable state, etc., because we want to be able to come to a firm conclusion. As you say, we want to be able to say, well, this happened in New York in approximately 1992, and this doesn't seem to impact any imaginary laws that we don't have the text of. We come to a pretty firm conclusion about what the law would say here. 

Although what I love about the DC comics is because most of them take place in imaginary cities, fictional cities like Metropolis, Gotham, Smallville, Central City. And the great thing about those is you don't know what state they're in.

Occasionally, in some timelines, the exact location of Gotham is specified as being, you know, oh, we could set you in New Jersey or whatever. But often it's ambiguous. And that is great because it means if we ask the question like, is The Joker legally insane? We can say, well, it depends. It depends on the law of the state where he's being tried. And so that gives us great opportunity to look at him and his actions, his mental state through the lens of several different traditional tests for insanity, legal insanity. 

I try to find an interesting situation that involves an area of law that I haven't really talked about before and that I can come to a definite conclusion about. Now, unfortunately, this does mean that people who ask about, you know, Star Trek, Star Wars, Harry Potter, that kind of thing. I just have to say, I don't know. There’s just not enough...

John Reed [00:32:16] Nerds.

James Daily [00:32:17] No, no, no. I mean, it's a great question. But there's just not enough to, there's not enough traction there. Yeah. There's not enough for me to work with. 

Now, occasionally we get situations like Superhuman Registration Act, for example, where there is a fictional law or a fictional constitutional amendment or something like that. And we either do, which is have the text of it, which is very interesting. These laws are written by comic book writers, not by legislators. And so the legal text can be a little interesting sometimes. But sometimes we don't have the text; we only have some kind of read-between-the lines or between-the-panels, if you will, about what the law actually says. And that again, is a great “it depends” moment where we can kind of jump off on that. 

John Reed [00:32:58] So, apart from the critical acclaim that I mentioned before, what are some of the other kinds of responses you've received? I mean, are people reaching out to debate you? We are talking about comic book fans and lawyers here after all.

James Daily [00:33:12] Yeah, absolutely. I do get some pushback sometimes about some of my conclusions, and that can take a couple of forms. Occasionally it's legal, either the disagreement with my analysis or even disagreement with the cases or statutes or regulations I might have picked up on. 

And sometimes I've been probably wrong, actually. I mean, I'll admit I'm not an expert on all these areas. And as you might imagine, while it's great fun to be able to find a patent law case in the pages of a comic book, that is not most of them. And so, you know, I'm not an expert on criminal law, even though that's a great deal of what I write about in the book and the blog. 

But oftentimes the disagreement is about my understanding of the comics. It's like, oh, well yes, but in prior issues we see, you know, these other facts that may be.

John Reed [00:33:56] Yeah. Or Earth One versus Earth Two.

James Daily [00:33:59] Yeah, yeah, just color your answer. Or what you're talking about is a, you know, is a what-if scenario, is a non-canon scenario or whatever. Or that has since been retcon, the retroactive continuity, basically. Ignore what we said earlier, actually, the truth is, a situation in comic book writing. 

Again, it just gives more opportunities to talk about “it depends,” where the Earth One version of the character might have a certain answer, but an Earth Two where the facts are a little different, maybe the answer is different.

John Reed [00:34:27] So. what are some newer topics or questions that have popped into your mind that you're thinking about now relative to the superhero du jour. 

James Daily [00:34:37] So, a recent question I got was about The Batman, The Animated Series TV show, which is, in my opinion, that's my Batman. But anyway, one of the episodes, the CEO of a toy company goes into business with The Riddler to license his puzzle technology for a new range of toys. He knows exactly who Edward Nygma is, and he is counting on using Nygma’s infamy as a sales gimmick. And he wanted to know if that was like a RICO problem, or the CEO was somehow breaking the law.

I refreshed my memory as I often have to do about the episode and its plot. Nygma had been released from Arkham Asylum on parole. What Arkham Asylum is exactly in terms of being an asylum versus a prison is a little unclear. But anyway, it seemed to be law abiding upon his initial release.

There's nothing illegal about giving an ex-con a job, generally speaking, assuming like the terms of the parole allow him to work in that industry. There can be cases where, as part of the terms of parole, if you committed bank fraud, you probably can't go work for a bank.

But once he starts committing crimes again, which inevitably he did, then RICO could maybe enter the picture and you can kind of go into that. But yeah, that's an example of the sort of questions that I get. 

John Reed [00:35:45] We could go on with this all day long. You know, we talked about criminal law and con law and property law, regulatory, superheroes having to comply with whatever regulations they may have, all that stuff.

But as you mentioned, thanks to Daredevil, Matt Murdoch, and She Hulk (Jennifer Walters), we now have, have had, but are more in the mainstream, superhero lawyers. And the ethical implications have just had to have been just a rich seedbed for you for all sorts of stuff. Has that been a godsend to your analyses?

James Daily [00:36:19] Oh, it's fantastic, and it's given me the opportunity to give, some CLE presentations and courses for attorneys on ethics using this as a jumping off point. 

I love these kinds of things because you get situations where you have Matt Murdoch's talking to his client who's in in prison. So, he is having a conference there and he there with his associate Foggy Nelson. Of course, we know that Matt Murdoch is daredevil. He can tell when people are lying with his super senses. Mm-hmm. He can hear their heartbeat start to flutter and they get tense, the voice tightens off, that kind of stuff.

And so, one of the first things he asks the client is basically, did you do it? Which, debatable strategy as a criminal attorney. I mean, like, you certainly can ask that question, et cetera, but some people maybe feel like, that's not my job to know. My job is to assume that you're innocent and work from there.

But you know, that can go either way. Whatever. This is all happening with a guard standing about five feet away. What is wrong with this picture? Right.

John Reed [00:37:12] The presence of a third party so close by is kind of a giveaway. Exactly. 

James Daily [00:37:17] Yeah. I will say one of the interesting things that the superhero attorneys provide is it really throws into sharp relief some of the ethics of superheroing, superheroism, super heroics. That, of course, if you were involved in taking down a villain and then, well, now you're potentially a witness. And this was especially complicated by Matt Murdoch's role as being a district attorney at one point. But also, there's a deeper issue. I'd have to raise a point about superhero comics and their role in society and this idea of, yes, we need people who can like, work outside the law to handle these really tough situations.

And there's a certain undercurrent of like, we just need to like take the gloves off and then we can really deal with these problems. And so, I like the opportunity to look at it from a legal perspective and say, well, hold on a second. There's a reason those gloves are on in the first place and why we have a bill of rights and that kind of thing.

And characters like Batman also brought a good way to look at this because Batman works so closely with the police that it potentially implicates him as a state actor and that maybe some of the stuff he does wouldn't necessarily be admissible in court because he's breaking into the superhero's lair rather than going and getting a warrant first, for example. 

Other problems where, you know, Peter Parker as Spider-Man ties up some muggers and leaves a note for the police, but there's no evidence, right? And while occasionally we actually do show these superheroes testifying in court, the implication is that they usually don't, they don't spend all day in depositions and court proceedings and stuff.

So, there's maybe a moment to take, a moment to think about, like, yes, but what happens after? And is this actually going to work? So, I like that opportunity to take a fun look at this kind of thing, but with some, some tiebacks to the real world and what superheroes are as a metaphor in our culture.

John Reed [00:39:10] We talked about your career. There are parts of it that are very heady where you're thinking about big picture ideas. Big ideas, future of the practice of law. And then you're also teaching a class to teach students very practical applications of technology in the practice of law.

And what's also really great is you've taken these very granular, insular questions of superhero law and breaking the law, and they are hypothetical, however entertaining they may be. But there have been practical applications too. You've had law professors reach out to you. Is that fair? Is that right? 

James Daily [00:39:49] Yeah, there's been a few who've said, “Wow, I love this. I'm going to use this as example questions or use this kind of style of question in my class.” That definitely does come up, and I think that's great. Especially a lot of first year courses like to do like a practice midterm that doesn't actually count. But, so I think something like that can be a way to take the edge off a little bit where okay, this isn't going to impact your grade. We're going to have the questions be, have a little, little fun. That can be great, for sure. 

John Reed [00:40:15] Has there ever been a topic or a hypothetical where you just went so far down the rabbit hole that it's like, “Okay, this one is sucking me in and I can’t get out, I need to stop?” 

James Daily [00:40:28] Well, as lawyers like to say, “it depends.” And there are definitely questions where there's just too many possibilities.

And there aren't enough knowns in the question. And one of these that I like is the Avengers. Exactly how they work and how they work in relation to Shield, what Shield even is. What the Avengers as an organization is. Is it a corporation? Like maybe it actually is. There's an Avengers Corporate Charter in some of the older comics. And if so, how does that work? 

Are they paid? I mean, some of these characters are independently wealthy or are gods maybe. But some of them are just ordinary people who have, you know, bills and stuff and who don't come into this with a ton of wealth and who maybe would have significant liability concerns if there was a problem.

And are they state actors because of how they work with Shields? Do they have some kind of special legal carve out? And nailing that down is kind of impossible. There just aren't enough details, and there are so many possible permutations that I kind of had to throw my hands up and say, well, I can't possibly go into all the possibilities. 

John Reed [00:41:36] You're absolutely right. I had not thought about the employment relationships, the ownership relationships, property rights, and the whole God thing. You're right. That just messes with it too. So that is a rabbit hole. That is absolutely a rabbit hole. 

James Daily [00:41:52] You really can't think too hard about it sometimes because there's so many characters who aren't humans, either heroes or villains or side characters. Even if they're sort of very human-like, like Thor, for example. Does the law even apply to them in most ways? Do they have legal rights or are they just animals, I guess? You know. Hmm. 

It takes you to some weird places legally. So, that's an area where I talked about but it sort of has to sit in the background for almost everything else. It's sort of those like, yeah, but we're not going to worry about that right now.

John Reed [00:42:24] You have to be judicious with what you can tackle. So, I get it. 

James Daily [00:42:28] One of the great things about comics is they are larger than life. They're big situations, they're extreme. And yet sometimes just like with science fiction, they can be a little bit of a window into the future, about things that might happen someday.

So, for example, you talked about life sentences for an immortal being, well immortality's maybe still very much the stuff of science fiction, but longer life is an increasing possibility and probably not hundreds of years, but perhaps notably longer than people live today. And the question is, what could that potentially change what we think about in terms of cruel and unusual punishment. You know, that if you're sentencing someone to life, and for most people that means probably a hundred years at the absolute most, right? If they commit a crime when they're say 20 and live to 120, as unlikely as that might be. But what if a hundred or 120 becomes a pretty normal age to live to? It's maybe very different than what the framers had in mind when they thought about cruel and unusual punishment. That if you sentence someone to prison in the 18th century, you are not sentencing them to a hundred years. 

And then of course there's questions about robots and AI and their rights or responsibilities and where that falls legally. So, when we think about villains, like Ultron, for example, does he or it have some kind of inherent liability itself, as an AI? Or does it all fall onto its creators, that kind of thing.

And I think these can provide some opportunities to think about it. Not necessarily to say that we will discern the truth by looking at comic books. No, but that it at least provides an opportunity to start thinking about that. 

John Reed [00:44:08] James, I am grateful to you for allowing my lawyer-superhero-geek alter ego to come out today. This has been legal, mental gymnastics that I really haven't experienced before, and I've enjoyed this conversation immensely. 

We will put links to the blog, your book, and other info about you on our website so our listeners can learn more from you and enjoy what you put out there. Thanks for being here. This has been really great. 

James Daily [00:44:34] Thank you very much. It's been a great time. 

John Reed [00:44:37] Wasn't that awesome? I'm always amazed at the guests we have on the show and what they do, and I'm the host of this podcast. If this is your first time tuning into Sticky Lawyers, please subscribe and come back for more. If you're a regular listener, then you know what we're about, and you should subscribe, too, if you haven't already. 

Regardless of whether you're new to the show or a longtime stickler, please leave us a review or drop us a line on stickylawyers.com. We'd love to hear your thoughts. Until next time, I'm John Reed and you've been listening to Sticky Lawyers.